A town justice has been offered the opportunity to interview for the position
of town code enforcement officer. The justice inquires if it would be permissible to
serve in both positions simultaneously.

The Rules Governing Judicial Conduct allow a part-time judge to accept
private employment or public employment in a federal, state or municipal agency
provided that such employment is not incompatible with judicial office. 22 NYCRR
100.6(B)(4). We conclude that, in this instance, the two positions are incompatible.

Although a town code enforcement officer does not appear to have peace
officer or police officer status, and therefore holding such a position would not
expressly violate the rules which prohibit a part-time judge from being employed as a
police or peace officer [CPL 2.15; 2.20; Town Law 31(5); UJCA 105(C); 22 NYCRR
100.4(C)(2)(b)], this Committee, nonetheless, believes that serving in both capacities
simultaneously would be improper. It is clear to us that service as a town code
enforcement officer is the functional equivalent of a peace officer because it
includes the responsibility to determine whether to charge individuals formally with
code violations; the responsibility to file accusatory instruments in his/her own court;
and, if necessary, to testify as a witness in the same court. Beyond that, if no
assistant district attorney or town attorney is assigned to prosecute the town’s code
violation claims, the justice, as code enforcement officer, would be obligated to
serve as prosecutor in his/her own court.

Clearly, operating in these two capacities would be inappropriate. It would
violate the justice’s obligation to maintain judicial independence and to avoid
impropriety and the appearance of impropriety. Indeed, it is fundamental that a
sitting justice may not also serve as an accuser, a witness, and a prosecutor in the
justice’s own court, even though a co-justice of that court could preside over the
matter. 22 NYCRR 100.1; 100.2.

We also note that the Committee has previously said that a town justice may
not accept or engage in employment as a “Special Deputy U.S. Marshal” for an
independent contractor who provides security services to the federal courts, because
the duties of the latter position are very similar to those of a police or peace officer.
Opinion 96-39 (Vol. XIV). The responsibilities of a town code enforcement officer are
likewise similar to the duties of municipal police and peace officers, and the justice’s
acceptance of such a position is also in our opinion, prohibited. Accordingly, a town
justice may not accept or engage in employment as a municipal code enforcement
officer for the town.